Audio documents used in disciplinary proceedings Scotland solicitor

What can you do if an employee secretly records a meeting or disciplinary hearing without asking you or telling you first?

Almost every employee now carries a phone that can record audio, so this question comes up often. Sometimes an employee asks in advance whether they can record a meeting. In other cases the employer only learns about a covert recording much later, often when the employee brings a claim in the employment tribunal.

Can a secret recording be used as evidence?

In most cases, yes. Employment tribunals generally allow a party to rely on a covert recording if it is relevant to the issues in the claim. The recording, and usually a transcript, must be disclosed to the other side in the normal way before the hearing.

Recordings of an employer’s private deliberations, such as a disciplinary panel discussing its decision after the employee has left the room, are normally excluded on public policy grounds. That protection has limits.

In Punjab National Bank (International) Ltd v Gosain (2014), the Employment Appeal Tribunal allowed an employee to rely on recordings of private discussions because they were said to include offensive remarks that went well beyond a genuine discussion of her case.

Whether everyone present consented, whether your policy bans recording, or whether the employee was told not to record will not usually stop a relevant recording being admitted. Those points are more likely to matter when the tribunal decides how the employee’s conduct should affect any compensation.

Is secretly recording a meeting misconduct?

The leading case is Phoenix House Ltd v Stockman, decided by the Employment Appeal Tribunal in 2019. Ms Stockman secretly recorded a meeting with HR. Her employer only found out after she had brought an unfair dismissal claim, and it argued that it would have dismissed her for gross misconduct had it known, so her compensation should be reduced to nothing.

The employment tribunal disagreed. It accepted that she had been upset during the meeting and had not recorded it to entrap anyone, and it found that the recording did not destroy the relationship of trust and confidence. It did reduce her compensation by 10% to reflect the recording. The Employment Appeal Tribunal upheld that decision.

The Employment Appeal Tribunal said that covertly recording a meeting will generally be misconduct, and that good practice is for an employee to say if they want to record, but it will not always be gross misconduct. Relevant factors include:

• why the employee made the recording, for example to keep an accurate record or to protect themselves rather than to entrap the employer
• how blameworthy the conduct was, including whether the employee had been told not to record or lied about doing so
• what was discussed, such as confidential business information or personal information about colleagues
• whether the employer’s policies make clear that covert recording is treated as gross misconduct

Practical steps for employers

• State your position on recording meetings in your disciplinary and grievance procedures, including whether covert recording will be treated as gross misconduct.
• Keep an accurate written note of every investigation, disciplinary and grievance meeting and give the employee a copy. A good note removes much of the reason to record.
• Consider requests to record a meeting openly. Allowing a recording may be a reasonable adjustment for a disabled employee, for example where a condition affects memory or concentration.
• Assume that anything said during a meeting, including during breaks, could later be heard by a tribunal, and behave professionally throughout.
• If you discover a covert recording, look at the circumstances before deciding what to do, rather than treating it as automatic gross misconduct.

Many of the problems we see arise from the process rather than the recording itself. Our guides to managing workplace investigations and disciplinary procedures and the common mistakes employers make in disciplinary proceedings explain how to run a fair process, and our employment law advice for employers covers policies and procedures in more detail.

If you are dealing with a recorded meeting or a difficult disciplinary issue, book a free 30-minute consultation with our employment solicitors or call 0141 471 9166.